LS Home Services, Inc. v. Blackman Plumbing Supply Co.

582 F. App'x 43

• Court: Court of Appeals for the Second Circuit
• Decided: November 6, 2014
• Docket: 13-3078
• Status: Unpublished

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment is AFFIRMED.

Appellant John LaCertosa, proceeding pro se, appeals from the district court’s dismissal of his civil RICO action for lack of standing. LaCertosa also moves to strike portions of appellees’ briefs contesting allegations of RICO predicate acts by pro se appellee Paul Bedford. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

“We review de novo a district court’s dismissal of a complaint for lack of standing.” Se levan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir.2009). For the purposes of such review, we “aceept[ ] as true all material allegations in the complaint and constru[e] the complaint in favor of the complaining party.” Fuentes v. Bd. of Educ. of City of N.Y., 540 F.3d 145, 148 (2d Cir.2008).

Upon such review, we conclude that LaCertosa lacks standing substantially for the reasons stated in the district court’s thorough memorandum and order. See LaCertosa v. Blackman Plumbing Supply Co., et al., No. 10-cv-1984, 2013 WL 3728803 (E.D.N.Y. July 12, 2013). LaCertosa’s before the district court when given the opportunity to brief the issue of his standing. See Baker v. Dorfman, 239 F.3d 415, 423 (2d Cir.2000). Moreover, we conclude that the special duty exception is inapplicable, as LaCertosa alleges no “injury that is separate and distinct from the injury sustained by the corporation.” Manson v. Stacescu, 11 F.3d 1127, 1131 (2d Cir.1993). 1

Lastly, LaCertosa’s motion to strike is denied as moot because we conclude that the district court’s dismissal for lack of standing was proper, and we therefore do not need to address whether the complaint adequately alleged RICO predicates. 2

We have considered all of LaCertosa’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED and LaCertosa’s motion to strike is DENIED as moot.

1 . LaCertosa argues that his complaint should be accorded the liberal construction given to pro se pleadings, even though he was represented by counsel when the complaint was filed, because, he asserts, the complaint was actually drafted by himself and his non-lawyer son. We need not address this contention because we reach the same conclusion even according his complaint such a liberal reading.

2 . We also note that, as the complaint alleges that predicate acts committed by Bedford were in furtherance of an enterprise of which the appellees were a part, it was entirely appropriate for appellees to contest the sufficiency of these allegations in their briefs.